PEOPLE v. MELO (2020)

Judgment, Supreme Court, New York County (Robert M. Mandelbaum, J.), rendered January 3, 2018, convicting defendant, after a jury trial, of coercion in the first degree, assault in the third degree, aggravated harassment in the second degree, menacing in the second degree and endangering the welfare of a child, and sentencing him to an aggregate term of 21/313 to 7 years, unanimously affirmed.

The court providently exercised its discretion in admitting social media posts by defendant, including, among other things, a music video reenacting part of the crime.  This evidence contained defendant's admissions to elements of the charged crimes (see People v. Chico, 90 N.Y.2d 585, 589, 665 N.Y.S.2d 5, 687 N.E.2d 1288 [1997]).  To the extent the probative value of some of this evidence may have been outweighed by its potential for prejudice, any error in admitting it was harmless (see People v. Crimmins, 36 N.Y.2d 230, 241–242, 367 N.Y.S.2d 213, 326 N.E.2d 787 [1975]).  Independent of the evidence at issue, there was overwhelming evidence of defendant's guilt, including his recording of the original incident, his voice messages admitting that he threatened and punched the victim, the victim's testimony along with that of corroborating witnesses, and evidence of the victim's injuries.

Defendant has not established the prejudice requirement of a state or federal ineffective assistance of counsel claim (see People v. Benevento, 91 N.Y.2d 708, 713–714, 674 N.Y.S.2d 629, 697 N.E.2d 584 [1998];  Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 [1984]).  Because of his misunderstanding of the court's Sandoval ruling, defense counsel elicited the underlying facts of a youthful offender adjudication incurred 9 years earlier when defendant was 16 years old, along with defendant's mitigating explanation of the incident.  Although this was a mistake, as counsel acknowledged, he asked only three brief questions about the prior conduct, which was remote from and dissimilar to the instant offense, and he never revisited the issue in summation, nor did the prosecutor refer to it at any point.  Accordingly, we find no reasonable possibility that counsel's error affected the outcome of the case or deprived defendant of a fair trial, particularly since there was overwhelming evidence of defendant's guilt.  Defendant's remaining claim of ineffective assistance, relating to the above-discussed social media posts, is unreviewable on the present record.

Defense counsel impliedly consented to the court's submission to the jury of written copies of its final instructions, which the jurors were permitted to take with them when they retired to deliberate (see People v. Muhammad, 34 N.Y.3d 1152, 119 N.Y.S.3d 768, 142 N.E.3d 660, 2020 N.Y. Slip Op. 00180 [2020];  People v. McFadden, 162 A.D.3d 501, 75 N.Y.S.3d 190 [1st Dept. 2018], lv denied, 32 N.Y.3d 939, 84 N.Y.S.3d 866, 109 N.E.3d 1166 [2018]).

We perceive no basis for reducing the sentence.